Lambda Legal, Mazzoni Center Help Defend Philadelphia's Nondiscrimination Policy Against Boy Scouts Lawsuit

(Philadelphia, March 24, 2010) - Late yesterday afternoon, Lambda Legal and Mazzoni Center sought permission to file a friend-of-the-court brief in a federal lawsuit brought by the Cradle of Liberty Council of the Boy Scouts of America challenging the City of Philadelphia's policy requiring nondiscrimination in the use of the City's subsidies.

"The Boy Scouts are entitled to their beliefs, but they have no right to make the City of Philadelphia's taxpayers foot the bill for their harmful discrimination against gay people," said Thomas W. Ude, Jr., Senior Staff Attorney at Lambda Legal. "Cradle of Liberty Council is not entitled to the subsidized use of City property without agreeing that the use will comply with the City's nondiscrimination policies – allowing it to do so would open the door for groups to use public resources to discriminate against the taxpayers who provide those resources."

In 1928, the City of Philadelphia gave Cradle of Liberty, the local Boy Scouts Council, permission to erect a building on City land (at the Boy Scouts' expense) for the Council’s exclusive use as its headquarters. The City owns the land and building, and has allowed the Boy Scouts to use it rent-free, paying only to maintain it. The Council has enjoyed exclusive rent-free use of the building ever since. The local Boy Scouts and other BSA Councils refuse to permit youth and adults who are gay or atheists to be leaders or members. In 2000, in Boy Scouts of Am. v. Dale, the U.S. Supreme Court resolved a challenge to that practice in a case brought by Lambda Legal, and held that the Boy Scouts of America had the right to exclude "an avowed homosexual and gay rights activist" from serving as an assistant scoutmaster. When arguing that case, the Boy Scouts' attorney told the Court that the Boy Scouts were prepared to lose support from the government because of their exclusionary policies.

The City of Philadelphia requires all organizations enjoying the subsidized or free use of City buildings to agree that they will not use that subsidized property to discriminate based on sexual orientation, religion and other characteristics. Not only did the Boy Scouts refuse to agree not to discriminate, but in 2003, they ousted an seventeen-year-old Scout from membership because he is gay. On May 31, 2007, the City passed a resolution stating that the Boy Scout's discrimination in its use of the City's building subsidy is contrary to the City's nondiscrimination policy. The City offered the Boy Scouts a choice of three options: move out; pay fair market rent, or stop using the rent-free building to discriminate. In May 2008, days before it was required to surrender the property, the Boy Scouts filed suit in federal court, asserting claims under the Constitutions of the United States and Pennsylvania and claims under Pennsylvania law.

Lambda Legal's and Mazzoni Center's friend-of-the-court brief supports the City of Philadelphia's decision to stop subsidizing Cradle of Liberty Council's harmful discrimination. The brief argues that though the Boy Scouts are entitled to their beliefs, as recognized in the Dale case, the City of Philadelphia is not required to subsidize the organization’s discriminatory conduct.

Mazzoni Center, Philadelphia's LGBT health center, joins Lambda Legal as amicus and serves as co-counsel on this brief. Amara S. Chaudhry, Director of Legal Services at Mazzoni Center said, "As a health and wellness organization, we are extremely sensitive to the medical and mental health effects of discrimination. We feel very strongly that the City of Philadelphia should not use city funds to subsidize discriminatory policies which have such a detrimental effect on the health and well-being of LGBT Philadelphians. Tax dollars which come from all of us should not be used to support an organization that discriminates against some of us."

The case is Cradle of Liberty Council, Inc., Boy Scouts of Am. v. City of Philadelphia

Thomas W. Ude, Jr., Senior Staff Attorney, and M. Brent Byars, Affiliated Attorney, are handling the matter for Lambda Legal. They are joined by Amara S. Chaudhry, Director of Legal Services at Mazzoni Center.

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